No. 81-311 INTHE SUPREBE COURT OF THE STATE OF MONTANE 1981

STATE OF MONTANA, Plaintiff and Respondent,
-vsJOHN ALLEN BIGSMOKE, Defendant and Appellant.

Appeal from: DistrictCourt of the Fourth Judicial District, In and for the County of Lake, The Honorable Jack L. Green, Judge presiding.
Counsel of Record: For Appellant: R. J. Pinsoneault, St, Ignatius, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Richard P. Heinz, County Attorney, Polson, Montana

Submitted on Briefs: December 17, 1981 Decided: March 25, 1982

Filed: 

## MAR

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## 5

# 1988

# 'Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court. On May 16, 1973,petitioner JohnAllen Bigsmoke appeared with court-appointed counselbefore the District Court of the Fourth Judicial District, Lake County, Polson,Montana, and entered a plea of guilty to the crime of lewd and lascivious acts upon a child, inviolation of section 94-4106,R.C.M.

(1947). This plea was accepted as a compromise forpetitioner's previous plea of not guilty to a charge of rape. Petitioner
was sentenced to twenty years in the statepenitentiary. After being denied relief by the Sentence Review Board and having parole revoked twice,petitioner filed this post conviction relief petition, requesting either reduction of sentence or withdrawal of guilty plea. This appeal results because the District Court,after hearing, denied petitioner relief. Two principal questions encompass the issues raised on appeal: (1) Whether the District Court abused its discretion in refusing to allowpetitioner to withdraw his guilty plea? (2) Whether the District Court erred in concluding petitioner was not deprived of effective assistance of counsel atplea entry? The first issue is dispositive,however,because petitioner's contention that he received ineffective assistance of counsel is predicated solely upon a conclusion thathis guiltyplea
was entered without understanding or voluntariness. On July 23, 1980, at hearing on petition, Bigsmoke testified that original defense counsel told him that if he pleaded guilty to the lesser charge he would probably getoff with three years suspended. He contends that because his plea was entered with that understanding, he is entitled to withdraw such plea since the sentence imposed did not conform to his expectations. Defense counsel from the originalproceeding died in 1974 so therewas no way to refute or verify petitioner's testimony regarding their preplea entry discussions. Petitioner also testified that he did not understand what the crime of lewd and lascivious acts with a childwas as neither the court nor counsel explained the elements of the lesser charge to him; accordingly, he contends he could not enter a voluntary and understanding plea.The District Court found otherwise. Absent an abuse of discretion the lower court's judgment in granting or denying petitioner relief will not be disturbed. Statev. Nance

(1947),120Mont. 152, 184 P.2d 554;Accord, Statev. Lewis (1978),177Mont. 474, 582 P.2d 346. State v. Huttinger (1979), Mont. 

## , 595 P.2d 363, 36 St.Rep. 945, sets forth the factors a lower court should consider in determining whether a guilty plea should be withdrawn. We find no abuse of discretion in the lower court's application of those factors to the instant case. The court's interrogation of defendant at entry of plea adequately revealed his understanding of the charge and consequencesof his plea despite petitioner's testimony to the contrary six and one-half years later. At entry of plea, the court specifically asked Bigsmoke if his plea resulted from any promises of leniency; he replied "no." Further the court informed the defendant that themaximum penalty was twenty-five years for the charge to which hepleaded and that the court alone had the power to impose sentence within thatparameter; the defendant indicated that he understood. The lower court isnot compelled to accept petitioner's unsupported, if not opportunistic, assertion that his guilty plea was entered solely upon misrepresentations of now deceased counsel when the plea entry transcript isdevoid of any indication that, at that time, defendant had concrete expectations as to the sentencehe would receive. Moreover, the DistrictCourt was entitled under In
reMcNair (1980), Mont. 

## , 615P.2d 916, 37 St.Rep. 1487, to consider the long delay in filing the motion to withdraw in assessing petitioner's credibility during the 1980hearing. Finally,noting thatpetitioner had received the benefits of the 1973plea bargain, the District Court correctly considered the possible adverse impacts on the prosecution were the court topresently set asidepetitioner's obligations under that bargain and reopen the case anew. See Statev. Haynie (1980), Mont. 

## , 607P.2d 1128,

The judgment of the lower court ishereby affirmed.

We Concur:

..- Chielf'Justice